Karnataka High Court
Umesh S/O Ambanna @ Amrut Natikar vs The State Of Karnataka on 22 July, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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NC: 2024:KHC-K:5191
CRL.A No. 200077 of 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO. 200077 OF 2020 (374)
BETWEEN:
UMESH S/O AMBANNA @
AMRUT NATIKAR
AGE: 21 YEARS,
OCC: NIL,
R/O: GANGANPALLI VILLAGE,
TQ: CHINCHOLI,
DIST: KALABURAGI-585 305.
...APPELLANT
(BY SRI VISHAL PRATAP SINGH, ADV.)
AND:
THE STATE OF KARNATAKA
Digitally MIRIYAN POLICE STATION,
signed by THROUGH S.P.P.
SHILPA R
TENIHALLI HIGH COURT-585 107.
Location: ...RESPONDENT
HIGH
COURT OF (BY SRI VEERANAGOUDA MALIPATIL, HCGP)
KARNATAKA
THIS CRL.A. IS FILED U/S.374 (4) OF CR.P.C PRAYING
TO, ALLOW THIS APPEAL AND SET ASIDE THE
JUDGMENT/ORDER OF THE LEARNED II ADDL. SESSION
JUDGE, KALABURAGI DATED 27.03.2019 IN SPL. CASE
(POCSO) NO.38/2018 AND CONSEQUENTLY ACQUIT THE
APPELLANT, IN THE INTEREST OF JUSTICE AND EQUITY,
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
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CRL.A No. 200077 of 2020
JUDGMENT
(PER: THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)
1. This criminal appeal under Section 374(2) of Cr.PC is filed by the accused with a prayer to set aside the judgment and order of conviction and sentence dated 27.03.2019 passed by the Court of II Addl. Sessions Judge, Kalaburagi in Spl. Case (POCSO) No.38/2018.
2. Heard the learned Counsel for the parties.
3. Brief facts of the case leading to filing of this appeal as revealed from the records are, FIR in Crime No.52/2018 was registered by Miriyana Police Station, Kalaburagi, for the offences punishable under Sections 363, 366A, 504 IPC, Sections 17 & 18 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act') and Section 3(1)(xi) of the Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 (for short, 'SC/ST Act'), against the appellant herein on the basis of the first information dated 21.07.2018 received from PW-5 who is the elder brother of the victim - PW-1.
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4. During the course of investigation, the appellant and the victim were traced together in Veerabhadreshwara Temple at Changalera village and were brought back by the police to Chincholi Police Station. After investigation, the police filed charge sheet against the appellant for the offences punishable under Sections 363, 366A, 354D, 506 IPC, Sections 11 & 12 of the POCSO Act and Sections 3(1)(r), 3(1)(w)(i) of the SC/ST Act.
5. The allegation in the charge sheet is, that prior to three months from the date of appellant kidnapping the victim, he was following her and pestering her to love and marry him inspite of the victim opposing and objecting the behaviour of the appellant. On 20.07.2018 at about 7.00 p.m., when the victim after attending the nature call, was on her way to her house near Bhagyavanti Temple, the appellant met her and asked her to accompany him to get married. When the victim refused to accompany him, he allegedly threatened to kill her and took her along with him through fields to Kunchavaram cross, and thereafter from Kunchavaram cross he took her in a lorry to Veerabhadreshwara Temple in Changalera village and -4- NC: 2024:KHC-K:5191 CRL.A No. 200077 of 2020 they stayed there till the police came and apprehended them on 23.07.2018.
6. The Trial Court had framed charges against the appellant for the offences punishable under Sections 354D, 366A, 506, 504 IPC, Section 12 of the POCSO Act, and Sections 3(1)(r), 3(1)(w)(i) of the SC/ST Act, read over and explained the same to the appellant and since he denied the charges and claimed to be tried, the prosecution in order to prove its charges against the appellant, had examined 16 charge sheet witnesses as PWs-1 to 16. 17 documents were produced and marked as Exs.P-1 to P-17 and six material objections were marked as MOs-1 to 6. Thereafter, the Trial Court had recorded the statement of the appellant under Section 313 of Cr.PC. However, no defence evidence was led nor was any document marked on behalf of the defence.
7. The Trial Court vide the impugned judgment and order convicted the appellant for the offences under Sections 354D, 366A, 506, 504 IPC, Section 12 of the POCSO Act and Sections 3(1)(r), 3(1)(w)(i) of the SC/ST Act. For the offence punishable under Section 354D IPC, the appellant was sentenced to under -5- NC: 2024:KHC-K:5191 CRL.A No. 200077 of 2020 go rigorous imprisonment for three years and pay fine of Rs.50,000/- and in default, to undergo simple imprisonment for one year. For the offence punishable under Section 366A IPC, the appellant was sentenced to undergo rigorous imprisonment for ten years and pay fine of Rs.1,00,000/- and in default, to undergo simple imprisonment for two years. For the offence punishable under Section 506 IPC, the appellant was sentenced to undergo rigorous imprisonment for two years and pay fine of Rs.10,000/- and in default, to undergo simple imprisonment for six months. For the offence punishable under Section 504 IPC, the appellant was sentenced to undergo rigorous imprisonment for two years and pay fine of Rs.10,000/- and in default, to undergo simple imprisonment for six months. For the offence punishable under Section 12 of the POCSO Act, the appellant was sentenced to undergo rigorous imprisonment for three years and pay fine of Rs.50,000/- and in default, to undergo simple imprisonment for one year. For the offence punishable under Sections 3(1)(r), 3(1)(w)(i) of the SC/ST Act, the appellant was sentenced to undergo rigorous imprisonment for five years and pay fine of Rs.50,000/- and in default, to undergo simple imprisonment for two years. Being aggrieved -6- NC: 2024:KHC-K:5191 CRL.A No. 200077 of 2020 by the aforesaid judgment and order of conviction and sentence, the appellant is before this Court.
8. Learned Counsel for the appellant having reiterated the grounds urged in the appeal memorandum, submits that the appellant and the victim were in love. Undisputedly, the appellant has not even touched the victim while she was in his company. The material evidence available on record does not make out a case against the appellant for conviction under Sections 366A, 354D, 504 IPC, Section 12 of the POCSO Act, and Section 3(1)(r) of the SC/ST Act. The Trial Court has completely misread and misunderstood the material evidence on record and has erred in passing the impugned judgment and conviction.
9. Per contra, learned HCGP has argued in support of the impugned judgment and order of conviction and sentence. He submits that the victim is a minor and her age is proved by the prosecution in accordance with law. All the material witnesses have supported the case of the prosecution, and therefore, the learned Trial Judge was fully justified in passing the impugned -7- NC: 2024:KHC-K:5191 CRL.A No. 200077 of 2020 judgment and order. Accordingly, he prays to dismiss the appeal.
10. The prosecution in order to prove its case, has examined 16 charge sheet witnesses as PW-1 to PW-16. PW-1 is the victim in the present case. Ex.P-13 is the birth certificate of PW-1 issued by the School in which she was studying. As per Ex.P-13, the date of birth of PW-1 is 01.06.2002. PW-1 has stated that she had passed SSLC in the month of 2018. She has also stated that prior to three months from the date of incident, appellant was teasing her and was expressing his love and willingness to marry her. She had refused his proposal on the ground that she was a minor and inspite of that, the appellant continued his habit. This was informed by her to her brothers PW-5 (CW-1) and PW-10 (CW-11). PW-5 & PW-10 had gone to the house of the appellant and had advised him. On 20.07.2018, appellant met the victim near Bhagyavanti Temple while she was returning home after attending nature call and asked her to accompany him to marry him. When she refused to accompany him, he threatened her with dire consequences to her life, and thereafter, took her along with him to Kunchavaram cross and from there they traveled in a lorry to -8- NC: 2024:KHC-K:5191 CRL.A No. 200077 of 2020 Veerabhadreshwara Temple at Changalera village and stayed there till 23.07.2018. She has stated that at about 6.00 a.m. on 23.07.2018, police came there and brought back them to the police station. She has also stated that thereafter she was subjected to medical examination by the doctor and her statement was recorded by a Judge in Chincholi Court. Ex.P-1 is the statement of the victim girl recorded by the jurisdictional Magistrate under Section 164 of Cr.PC. Ex.P-2 is the photograph of the spot of crime. This witness has clearly stated that when she stayed along with the appellant for three days in Veerabhadreshwara Temple at Changalera, the appellant did not trouble her in any manner nor had he touched her body. She has stated that on the way to Veerabhadreshwara Temple, while they were in the lorry, appellant had telephoned CW-1 and after abusing him referring to his caste, had informed him that he was taking his sister along with him.
11. PW-2 is the mother of PW-1. PW-5 & PW-10 are the brothers of PW-1, and PW-12 is the father of PW-1. These witnesses have stated about the lodging of police complaint by PW-5, and thereafter, police tracing the appellant and victim together in a temple at Changalera village. PW-2 during the -9- NC: 2024:KHC-K:5191 CRL.A No. 200077 of 2020 course of cross-examination, has stated that the appellant had not touched the victim when she was in his company. She has stated that the appellant did not do anything to the victim in the temple at Changalera and he did not even touch her. She has stated that even on the way to Changalera Temple, appellant did not do anything to the victim.
12. PW-3 is the doctor who had medically examined the appellant, and PW-4 is the doctor who had medically examined the victim. PW-4 has stated that the victim was produced before her by PW-14 on 23.07.2018 with the history of sexual assault. The victim had informed that she was studying in 1st PUC in Chincholi and she was in love with the appellant who was working at Bengaluru for the last two to three years. They had decided to marry. They had gone to Changalera and stayed in a temple there till the police found them and brought them back. The victim had not given any history of sexual assault. She has stated that external injuries were not found on the body of the victim. During the course of her cross-examination, this witness has stated that there was no evidence of recent sexual intercourse and there were no seminal stains or blood stains on the clothes of the victim.
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13. PW-6 & PW-9 are the panch witnesses to Ex.P-8 & Ex.P-9
- seizure panchanamas and Ex.P-10 - spot panchanama. PW-7 is the officer from Forensic Science Laboratory who has issued the report - Ex.P-5. Neither the evidence of PW-7 nor his report at Ex.P-5 are helpful to the case of the prosecution.
14. PW-8 is the incharge Head Master of the school in which PW-1 had studied upto SSLC. This witness has stated that he had issued the certificate at Ex.P-13 on the basis of the admission register maintained in the school. The original admission register which was produced by this witness before the court was perused by the court and after confirming the date of birth mentioned in the said original admission register as 01.06.2002, the original register was returned to the witness.
15. PW-11 is the Police Sub-Inspector who had traced the victim and the appellant, and had brought them to the police station. PW-13 is the Dy.SP who had conducted the investigation in the present case and had filed the charge sheet. PW-14 is the Women Police Constable who had taken the victim to the hospital for the purpose of medical examination.
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NC: 2024:KHC-K:5191 CRL.A No. 200077 of 2020 PW-15 is the Assistant Sub-Inspector of Police who had registered the FIR. This witness speaks about the recording of the statement of the victim girl under Section 164 Cr.PC before the jurisdictional Magistrate. PW-16 is the Head Constable who had carried the FIR to the jurisdictional Court of Magistrate.
16. Section 354D of IPC reads as under:
"354D. Stalking.- (1) Any man who--
(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or
(ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking:
Provided that such conduct shall not amount to stalking if the man who pursued it proves that--
(i) it was pursued for the purpose of
preventing or detecting crime and
the man accused of stalking had
been entrusted with the
responsibility of prevention and
detection of crime by the State; or
(ii) it was pursued under any law or to
comply with any condition or
requirement imposed by any
person under any law; or
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CRL.A No. 200077 of 2020
(iii) in the particular circumstances such
conduct was reasonable and
justified.
(2) Whoever commits the offence of
stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine."
17. The victim girl - PW-1 was traced along with the appellant in a temple at Changalera village. The police had brought the victim girl and the appellant back to the police station, and thereafter, on the same day she was medically examined by PW-4. Before PW-4, the victim had stated that she was in love with the appellant and she had eloped with him since they intended to get married. They intended to go to Pune to the house of the appellant's aunt, but even before that, they were apprehended by the police. Ex.P-1 is the statement of PW-1 recorded under Section 164 of Cr.PC. The same reads as under:
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NC: 2024:KHC-K:5191 CRL.A No. 200077 of 2020 "£Á£ÀÄ £À£Àß ºÉýPÉAiÀÄ£ÀÄß ¸Àé-EZÉÒ¬ÄAzÀ ºÉüÀ®Ä §A¢zÉÝãÉ.
MAzÀÄ ºÀÄqÀÄUÀ £À£ÀߣÀÄß ¦æÃw¸ÀÄwÛzÀÝ£ÀÄ. MAzÀÄ ¢£À £Á£ÀÄ §»zÉð¸ÉUÉ ºÉÆÃVzÁÞUÀ CªÀ£ÀÄ §AzÀÄ £À£ÀߣÀÄß NrºÉÆÃUÉÆÃt JAzÀÄ £À£ÀߣÀÄß PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃzÀ£ÀÄ. £ÀAvÀgÀ £Á«§âgÀÆ ZÁAUÉÃè gÀUÉ ºÉÆÃVzÉÝêÀÅ C°è «ÃgÀ¨z sÀ ÃÉæ ±ÀégÀ UÀÄrAiÀÄ°è 2 ¢£À EzÉݪÀÅ. C°èAzÀ £ÀªÀÄä£ÀÄß ¥ÉÆð¸ÀgÀÄ PÀgz É ÀÄPÉÆAqÀÄ §AzÀgÀÄ."
18. In her statement recorded under Section 164 of Cr.PC, PW-1 has stated that she was in love with a boy and when she had gone out to attend the nature call, he had come there and asked her to accompany him and took her along with him. Thereafter, they together went to Changalera and stayed in Veerabhadreshwara Temple for two days till the police came there and brought them back.
19. From the statement made by PW-1 before PW-4 at the earliest point of time and from her statement recorded under Section 164 Cr.PC which is not disputed by her, it is very apparent that she was in love with the appellant. Further,
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NC: 2024:KHC-K:5191 CRL.A No. 200077 of 2020 though PW-1 had allegedly informed PW-5 & PW-10 about the appellant stalking her, undisputedly no police complaint was lodged. The victim - PW-1 had traveled along with the appellant in a lorry from her village to Changalera village and stayed in a temple for about three days. She had not made any complaint to anybody while she was staying in the temple along with the appellant for a period of three days. Therefore, the allegations made by PW-1 in her deposition about appellant stalking her for a period of three months prior to the alleged date of incident becomes very doubtful. Therefore, the Trial Court was not justified in convicting the appellant for the offence punishable under Section 354D of IPC.
20. The Trial Court has also convicted the appellant for the offence punishable under Section 366A of IPC. Section 366A of IPC reads as under:
"366A. Procuration of minor girl.- Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with
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NC: 2024:KHC-K:5191 CRL.A No. 200077 of 2020 imprisonment which may extend to ten years, and shall also be liable to fine."
21. For the purpose of Section 366A IPC, procuration of minor girl should be with an intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person. There is no such allegation as against the appellant herein in the present case, and therefore, the Trial Court was not justified in convicting the appellant for the offence punishable under Section 366A IPC.
22. It is the specific case of the prosecution that the victim is a minor and on 20.07.2018 at about 7.00 p.m., the appellant had met her and asked her to accompany him and when she refused, he had criminally intimidated her and had taken her along with him. PW-1, during the course of her deposition, has clearly stated that when the appellant asked her to accompany him on 20.07.2018, she had refused to accompany him, but he threatened to kill her if she did not accompany him. The date of birth of the victim is 01.06.2022. The prosecution by producing Ex.P-13 and by examining PW-8 has successfully proved that the victim was a minor as on the date of incident.
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23. Section 361 IPC which provides for kidnapping from lawful guardianship reads as under:
"361. Kidnapping from lawful guardianship.- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation.- The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
Exception.- This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."
24. The victim who is a female in the present case is under 18 years of age and the appellant had criminally intimidated her and taken her along with him and had kept her out of lawful guardianship without the consent of the guardian.
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NC: 2024:KHC-K:5191 CRL.A No. 200077 of 2020 Therefore, the alleged act of the appellant would be punishable under Section 363 IPC. While taking the minor victim along with him, the appellant had criminally intimidated her, and this act of the appellant is punishable under Section 506 IPC. Therefore, material on record makes out a case against the appellant for the offences punishable under Sections 363 & 506 IPC.
25. For the offence punishable under Section 504 IPC, there should be an allegation that the accused had intentionally insulted a person and such insult must be such as to give provocation to the person insulted and the accused must intend or know that such provocation would cause him to break public peace or to commit any other offence. The allegations made against the appellant in the present case or the evidence of the material witnesses do not make out a case against him for the offence punishable under Section 504 IPC. Therefore, the Trial Court was not justified in convicting the appellant for the offence punishable under Section 504 IPC.
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26. Section 12 of the POCSO Act provides for punishment for sexual harassment. Section 11 of the POCSO Act provides for sexual harassment, which reads as under:
"11. Sexual harassment.- A person is said to commit sexual harassment upon a child when such person with sexual intent,-
(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or
(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or
(iii) shows any object to a child in any form or media for pornographic purposes; or
(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or
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(v) threatens to use, in any form of
media, a real or fabricated depiction
through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or
(vi) entices a child for pornographic purposes or gives gratification therefore.
Explanation.- Any question which involves "sexual intent" shall be a question of fact."
27. The victim - PW-1 and her mother - PW-2 have specifically stated during the course of their evidence that the appellant had not done anything to the victim and he had not even touched her while she was with him for a period of three days. They have also stated that even on the way to Changalera village, the appellant had not done anything to the victim. Section 2(j) of the POCSO Act which defines the term 'sexual harassment' reads as under:
"2(j) "sexual harassment" has the same meaning as assigned to it in section 11."
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28. From a reading of Section 11 of the POCSO Act, it is apparent that if only a person has committed the acts as provided under Section 11(i) to (vi) of the POCSO Act, with sexual intent is said to have committed sexual harassment. Explanation to Section 11 of the POCSO Act provides that any question which involves "sexual intent" shall be a question of fact.
29. In the present case, from a reading of the entire material available on record, more so the evidence of PWs-1, 2 & 4, it is very clear that the allegations made against the appellant would not constitute an offence under Section 11 of the POCSO Act which is punishable under Section 12 of the POCSO Act. Under the circumstances, the Trial Court was also not justified in convicting the appellant for the offence punishable under Section 12 of the POCSO Act.
30. Section 3(1)(r) & 3(1)(w)(i) of the SC/ST Act reads as under:
"3. Punishments for offences of atrocities.-
(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-
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(a) xxx xxx
(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;
xxx
(w) (i) intentionally touches a woman
belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe, when such act of touching is of a sexual nature and is without the recipient's consent;"
31. For the purpose of the offence punishable under Section 3(1)(r) of the SC/ST Act, the accused must have insulted or intimidated with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view. There is no such allegation in the present case against the appellant that he had insulted or intimidated either PW-1 or her relatives within public view.
32. For the purpose of Section 3(1)(w)(i) of the SC/ST Act, the accused should have intentionally touched a women
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NC: 2024:KHC-K:5191 CRL.A No. 200077 of 2020 belonging to Scheduled Caste or Scheduled Tribe knowing that she belongs to Scheduled Caste or Scheduled Tribe, when such act of touching is of a sexual nature and is without the recipient's consent.
33. In the present case, PW-1 & PW-2 have categorically stated that the appellant had not done anything to the victim and he had not even touched her when she was in his company. Therefore, there are no ingredients in the present case to hold the appellant guilty for the offence under Section 3(1)(w)(i) of the SC/ST Act. Therefore, the Trial Court was not justified in convicting the accused for the offences punishable under Sections 3(1)(r), 3(1)(w)(i) of the SC/ST Act.
34. The Trial Court in its judgment, has throughout held that the appellant has not committed rape against the victim. However, while assigning reasons for imposing sentence on the appellant, the Trial Court has observed that the appellant has committed rape against the minor girl and it is in this background, the maximum sentence has been imposed by the Trial Court on the appellant for all the offences for which he was convicted.
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35. The appellant who was aged 19 years as on the date of incident, is in custody from 23.07.2018. He has completed nearly six years of imprisonment. Taking into consideration the age of the appellant and also the facts and circumstances of the case, I am of the opinion that if he is sentenced to undergo imprisonment for a period of six years for the offence punishable under Section 363 IPC and the fine imposed by the Trial Court for the offence punishable under Section 506 is modified, the same would serve the ends of justice. Accordingly, the following order:
36. Criminal appeal is allowed in part. The impugned judgment and order of conviction and sentence dated 27.03.2019 passed by the Court of II Addl. Sessions Judge, Kalaburagi in Spl. Case (POCSO) No.38/2018, in so far as convicting the appellant for the offences punishable under Sections 354D, 366A, 504 IPC, Section 12 of the POCSO Act and Sections 3(1)(r), 3(1)(w)(i) of the SC/ST Act, is set aside. The appellant is acquitted of the offences punishable under Sections 354D, 366A, 504 IPC, Section 12 of the POCSO Act and Sections 3(1)(r), 3(1)(w)(i) of the SC/ST Act. The
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NC: 2024:KHC-K:5191 CRL.A No. 200077 of 2020 appellant is convicted for the offences punishable under Sections 363 & 506 IPC. For the offence punishable under Section 363 IPC, the appellant shall undergo rigorous imprisonment for six years and pay fine of Rs.10,000/- and in default shall undergo simple imprisonment for six months. For the offence punishable under Section 506 IPC, the appellant shall undergo rigorous imprisonment for two years and pay fine of Rs.5,000/- and in default shall undergo simple imprisonment for three months. All the sentences shall run concurrently. The appellant is entitle for set off a provided under Section 428 of Cr.PC.
Sd/-
JUDGE KK